Every
time there is a law and order outrage, there is inevitably a demand for a
judicial inquiry. That is, an inquiry in addition to the regular police
investigation.Those who
demand such an inquiry feel the police cannot be trusted to do a proper
investigation either because they are very much a part of the
administration or because their own role is under question. The Government
often has its own motive for acceding to the inquiry demand: To defuse the
tension and avert further problems. Thus, there have been hundreds of
judicial inquiries around the country especially since a law was enacted
for that purpose way back in 1952.

The
subjects of inquiry have been varied. They have ranged from police
brutalities and Emergency excesses to political assassinations and
communal riots. Each of such issues has been deemed to be a definite
matter of public importance, the sole criterion laid down by the
Commissions of Inquiry Act, 1952.But
in terms of sheer intensity of violence, the number of people murdered,
none of those matters can compare with the massacre of some 4,000 Sikhs in
Delhi over three days in 1984. The official death toll announced three
years after the massacre was 2,733. Since the Partition riots of 1947,
there has not been a single carnage anywhere in India on the scale seen in
1984, ironically right in its Capital.

Therefore,
it would seem, there has been no fitter case for inquiry than the Delhi
massacre. Yet, it took a long time for the Government to accede to the
inquiry demand. Almost six months. Though the massacre took place in the
first three days of November 1984, the inquiry was appointed only on April
26, 1985.The Government was
however prompt in ordering an inquiry into Indira Gandhis
assassination, which had triggered the massacre.It took just four days to announce a judicial inquiry into
the assassination. Why did the Government not show the same kind of
urgency about the massacre of 4,000 Sikhs? Why the distinction at the same
time between the murder of one and the murder of many? Was there not
enough pressure on the Government to hold an inquiry into the massacre as
well? No, the victims, Opposition parties, Sikh organisations, newspapers
and human rights groups did clamour for an inquiry again and again.

But
then the problem for the newly formed Rajiv Gandhi Government was that a
lot of those very people were equally vehement in alleging that the
massacre had been organised by leaders of the ruling Congress party. On
November 9, Atal Behari Vajpayee, who was then the president of the
Bharatiya Janata Party, which is the main rival to Congress in the local
politics of Delhi, said that the disturbances were in the main
engineered violence and the Congressmen are squarely responsible for
this. Deploring the Governments failure to accede to the near
unanimous demand for a judicial inquiry, he said he regarded it asthe Governments guilty conscience and an eagerness to shove
its own sins beneath the carpet.

While
the Government ignored Vajpayees charge, the Congress party
counter-attacked by saying, Who is not aware of the anti-minority bias
of parties like the BJP? No right thinking person can be taken in by their
false and misleading propaganda. Given such protestations of innocence,
one would have expected Rajiv to seize the opportunity of a judicial
inquiry to clear, if nothing else, the name of his party and government.
If he did no such thing, was it because Rajiv actually had so much to hide
that he would rather bear the stigma of suspicion than risk a judicial
inquiry, while the wounds were still so fresh and the evidence so much
easier to find? Or, was it simply that he was pandering to the wrath of
those Hindus who saw the massacre as a richly deserved lesson to the
Sikhs.

Whatever
his motive, Rajiv could at that stage disregard the allegations of
political complicity because they were yet to be supported by details such
as the names of the leaders and the nature of their alleged involvement.
The only name that came out in the press initially was of a Congress MP
from Delhi, Dharam Das Shastri, who was reported to have led a mob to a
police station on November 5 and berated the officers for arresting some
rioters. Shastris gratuitous concern for the miscreants fitted in, on
the face of it, with the allegation that Congress leaders had organised
the violence. A delegation of Opposition leaders highlighted Shastris
indiscretion the next day in their joint memorandum to Rajiv, who refused
however to see it as anything but an isolated incident of political
involvement.

An
overall account of the role played by politicians came out for the first
time on November 15 when two human rights organisations, Peoples Union
for Democratic Rights (PUDR) and Peoples Union for Civil Liberties (PUCL),
published a joint report entitled, Who are the guilty? More significantly,
it named the Congress leaders who had apparently been identified by
victims and witnesses as organisers of the riots. The report created a
sensation alright but only momentarily. Thats because the Government
had by then called the Lok Sabha elections, drowning out the commotion
over the inquiry demand.

The
poll was fixed for December 27, a fortnight ahead of the due date. The
election announcement made on November 13 put paid to any chances of an
inquiry being ordered till at least the electoral process was completed.
But, in the run-up to the elections, Rajiv had to explain his stand on the
massacre and the inquiry demand on more than one occasion. Except that he
kept taking varying and often conflicting positions.

First,
he provided a rationale to the massacre which made the inquiry demandsound rather misplaced. It was that famous comparison he made of
the massacre with the impact of a big tree falling on the earth. The
official translation of his Hindi speech on Indira Gandhis birth
anniversary says:Some
riots took place in the country following the murder of Indiraji. We know
the people were very angry and for a few days it seemed that India had
been shaken. But, when a mighty tree falls, it is only natural that the
earth around it does shake a little. In other words, he was plugging
the line that the three-day massacre in Delhi of 4,000 Sikhs was entirely
a spontaneous reaction of the mourners.

But
in the course of his election campaigning, Rajiv gave another spin to the
massacre. He repeatedly said that the motive behind Indiras
assassination was to provoke widespread communal violence as part of a
grand design to break up the country. The implication being that the
perpetrators of the communal violence were themselves victims of a
conspiracy as much as the Sikhs they massacred were. Though Rajiv was in
effect attributing the assassination and the consequent massacre to a
common conspiracy, the terms of reference of the Justice M.P. Thakkar
commission set up by him to unravel the conspiracy behind the
assassination made no reference whatsoever to the massacre.

In
his interaction with the press during the electioneering, Rajiv took yet
another position whenever he was asked about the inquiry demanded into the
alleged involvement of his party leaders in the Delhi massacre. Recalling
the meeting he had with the Opposition leaders on November 6, he said they
could name only one leader and he took action on that basis. The leader
Rajiv was referring to was none other than Dharam Das Shastri and the
action taken against him was that he was not renominated as a Congress
candidate in the election. The implication of Rajivs reply to the press
was: since he had denied the Congress ticket to Shastri, there was no more
any need for a judicial inquiry into the massacre.

However
untenable and inconsistent his reasoning might have been, Rajivs
evasion of the inquiry turned out to be in tune with the popular mood in
the election, held as it was under the shadow of Indira Gandhis
assassination and the massacre of Sikhs. Thanks to the overwhelming
mandate he received from the electorate (more than 90 per cent of the
seats in the Lok Sabha), Rajivs insensitivity to the riot victims
seemed to have turned into contempt for them. The customary condolence
motions passed by the new Lok Sabhareferred
to Indira Gandhi and even the victims of the Bhopal industrial disaster
that took place in December 1984. But those killed in the massacre that
followed Indiras assassination were conspicuously overlooked. It was as
though Rajiv wanted to avoid any gesture that might have been construed to
legitimise the inquiry demand.

In
an interview to India Today in January 1985, he said the inquiry would not
help as it would only rake up issues that are really dead.That was a singularly unkind metaphor. He had never before been so
derisive of the inquiry demand nor so dismissive of the value of an
independent probe into the massacre. As
if that was not bad enough, Rajiv went on to give a sinister twist to the
inquiry demand in an interview to Sunday magazine around the same time.He said an inquiry was not being instituted as it would do more
damage to the Sikhs, it would do more damage to the country by
specifically opening this whole thing up again. It sounded as though he
was giving a veiled threat to the victims that they could get into worse
trouble if they pressed for an inquiry.

For
all the vehemence with which he ruled out the inquiry, Rajiv soon had to
eat his words due to his administrative compulsion. He had won the
election positioning himself as the best bet to save the country from
being consumed by the raging Punjab militancy. As a natural corollary, he
declared right after the election that his top priority was to
settle the Punjab problem at the earliest. The key to that problem lay in
opening a dialogue with the Akali Dal leaders who had been in detention
since the crackdown that followed Operation Bluestar in June 1984. The
Government released them from detention but found that they wereunwilling to deal with it. The Akali leaders refused to talk
with the Government until it proved its bona fides by setting up a
judicial inquiry into the 1984 massacre.

Rajiv
no doubt found it difficult to consider that pre-condition because of his
avowed policy of shunning the inquiry. Besides, the no-inquiry policy was
an important part of the winning formula in the December 1984 Lok Sabha
election. He was under pressure to leave that formula undisturbed for the
assembly elections in several states barely three months later. It was
after all vital for the new Prime Minister to show that his maiden triumph
was no fluke and that he still commanded popular support.

Thus,
only after he tided over the assembly elections in March 1985, did Rajiv
allow his administrative exigency to take precedence over his political
posture. The first indication came when he sent a Cabinet panel at that
stage to Punjab where his home minister, S.B. Chavan, declared that the
inquiry could well be considered as part of a package settlement. But as
the Akalis maintained that the inquiry would have to be appointed before
the talks on the Punjab problem, Rajiv petulantly asked in an interview to
Frontline in April 1985: Well, there is something basically wrong here,
because isnt that what we are going to talk about? If its already
done before we talk, then what are we talking about? He was eager to
talk about the inquiry with the Akali leaders because, as he put it then
to the British publication Observer, we would like them to come forward
and say exactly what they want now.

The
politician in Rajiv had dismissed the inquiry demand outright just a few
weeks earlier saying it would only rake up dead issues and do more damage
to the Sikhs and the country. The administrator in him was now trying to
use the inquiry issue as a bargaining counter in the negotiations he
proposed to have with the Akali leaders for an accord on Punjab. There was
however a stalemate as the Akalis refused to talk until the inquiry was
appointed. They sought to exert pressure on the Government by threatening
to launch a major agitation on April 13, the anniversary of the
Jallianwala Bagh massacre. The Government gave in just two days before the
threatened agitation when Chavan announced in Parliament a package of
measures to restore normalcy in Punjab. One was the release of some
more Sikh detainees and another was the lifting of the ban on a militant
Sikh student organisation. The third and the most important measure
announced in that context was the decision to hold a judicial inquiry into
the Delhi massacre.

Thus,
the Rajiv Gandhi Government made no bones about the fact that the inquiry
demand was finally conceded merely to clear the way to an accord on Punjab
with the Akali Dal. There was no pretence whatsoever that it had suddenly
found the inquiry demand to be just. But then, strictly speaking, the
Governments attitude should not matter any longer once an inquiry
commission is appointed. The inquiry takes its own course regardless of
what anybody feels. Its job is to find facts and make recommendations. The
commission enjoys as much independence from the executive as the court
does. The Government can have its way only after the commission is done
with the inquiry. The Government has the discretion to accept or reject
the commissions findings and recommendations. Given the moral weight of
a report written by a judge after due inquiry, the Government is generally
hard pressed to justify any disagreement with the Commission.

The
Rajiv Gandhi Government did not however face any such embarrassment on
account of the inquiry report on the 1984 massacre. Although it found that
a number of people belonging to the Congress (I) party at the lower
level had participated in the riots, the report absolved the party
leaders of the allegation of organising the massacre. The Commission
headed by a serving Supreme Court judge, Ranganath Misra, did however
confirm some other serious allegations: that for three whole days the mobs
had a free run of the place murdering, looting and raping hundreds of
Sikhs; that the administration in the Capital had all but collapsed; that
the police either looked the other side or joined the mobs; that there was
an undue delay in imposing the curfew as well as in calling the army; that
the pattern of violence indicated that it was organised; that the police
either refused to entertain the complaints of the victims or registered
them only after deleting the names ofinfluential people; that the police and the rioters harassed
the victims even during the inquiry to prevent them from deposing before
it. Yet, the Misra Commission held that the culprits in the Congress party
behind the massacre were only workers and not leaders.

How
did the Commission come up with such a finding in the face of all those
facts suggesting otherwise? How did it reconcile the blanket exoneration
of the Congress leaders with, say, the controversy over Congress MP Dharam
Das Shastri who allegedly stormed a police station with a mob to secure
the release of other rioters? What could the Congress party have deposed
in its defence which made the Commission dissociate the leaders from the
workers? What was that strong evidence which convinced Misra that the
party workers were more likely to have acted on their own, without any
instigation or organisation from their leaders? What exactly did the
leaders and the workers say about each other during their
cross-examination? What action did the party show to have taken against
the delinquent workers and did it assume moral responsibility for their
crimes?

The
answers to these questions should logically have figured in the inquiry
report on the allegations in regard to the incidents of organised
violence. Equally obvious, no such inquiry could have been completed
without the participation of the very people who were alleged to have
organised the violence. Namely, the Congress leaders and workers
identified by the victims in their affidavits before the Commission. The
leaders included H.K.L. Bhagat, who was a minister in the Rajiv Gandhi
Government, and Sajjan Kumar and Dharam Das Shastri, former Congress MPs,
and several Delhi legislators. But, as it happened, Misra did not
throughout the inquiry call any of those Congress members nor for that
matter any representative of the party.

Misras
failure to put a single political leader through the wringer of cross
examination contrasts with the conduct of other inquiries held into
similar issues. Take the case of the B.N. Srikrishna Commission which
inquired into the Bombay riots of 1992-93 in the wake of the Babri Masjid
demolition. The Srikrishna Commission on its own initiative put in the
witness box Shiv Sena leader Manohar Joshi, who had by then become chief
minister of Maharashtra, and Congress leaders, Sudhakar Naik and Sharad
Pawar, who were at the time of the riots Maharashtra chief minister and
Union defence minister, respectively.

Far
from asserting his power to call anybody as a witness, Misra went out of
his way to keep the Congress members out of the proceedings even at the
cost of violating the law.Section
8-B of the Commissions of Inquiry Act stipulates that the Commission
cannot probe the conduct of any person without giving him an opportunity
to be heard and to defend himself. The allegations made by the victims
were very much about the conduct of the Congress members. Misra should
therefore have given them an opportunity to defend themselves by issuing
Section 8-B notices to them. None of the Congress members however objected
to his failure to do so. The fact that they forsook their right to defend
themselves implied two things. One, they feared they would only be exposed
further when cross examined by the lawyers of the victims. Two, they had
the confidence or foreknowledge that Misra would somehow vindicate them
even in the absence of their defence.

Thus,
by shielding the Congress members from his own proceedings, Misra has
clearly engaged in a fix-it inquiry. Nevertheless, he had to find some
other way of countering all those nasty affidavits from the victims. He
did so in his own freewheeling manner with the testimony of a third party.
Namely, those who filed, as Misra himself put it, affidavits against
the victims.It was odd
enough that any affidavit should have been filed at all against the Sikhs
in the context of their own massacre. Not only were such affidavits filed
but they also outnumbered those in support of the victims by as many as
four times.

All
the anti-victim affidavits had the same stereotyped contents asserting
that the local MP and other Congressmen had helped the Sikhs. None of them
went into specific details of how the Congress leaders had helped the
Sikhs during the carnage. But even if their credibility was found
acceptable, the anti-victims affidavits could at best have been used to
corroborate the defence of the Congress leaders. Misra instead used the
anti-victim affidavits as a substitute for the non-existent defence of the
Congress leaders, thereby sparing them the risk of facing the cross
examination.

Another
notable aspect of Misras fix-it inquiry was, he conducted it throughout
in the secrecy of in camera proceedings. Generally, whether it is a court
of law or commission of inquiry, the power of holding in camera
proceedings is sparingly used so as to maintain the credibility of the
proceedings. But, just as the Congress leaders could not risk facing the
lawyers of the victims, Misra could not afford to let the press attend his
proceedings lest they caught on to his cover-up attempts. When a few
reports came out initially despite his ban on the entry of the press,
Misra passed an unprecedented order threatening to take action against the
newspapers that continue to report the Commissions proceedings.

Later,
when he was to examine some public officials in the course of the inquiry,
he turned all the more secretive and kept in the dark even the lawyers of
the victims. That was the last straw for the Citizens Justice Committee (CJC),
the main representative of the victims.It withdrew from the proceedings half-way through the inquiry,
causing embarrassment to Misra. Not the least because the CJC could not be
dismissed as a bunch of hot-headed activists since it consisted of highly
respected establishment figures such as S.M. Sikri, former chief justice
of India, V.M. Tarkunde and R.S. Narula, former high court judges, Soli
Sorabjee, senior advocate in the Supreme Court, Rajni Kothari, political
scientist, Lt Gen J.S. Aurora, the Bangladesh war hero, and Khushwant
Singh, author and columnist.

The
CJC was formed under the chairmanship of Sikri with the express object of
helping the Commission arrive at the truth. But Misras machinations
forced it to walk out saying his unusual procedure only served the purpose
of shielding the culprits and suppressing the truth. In other words,
a group headed by a former chief justice of India accused a serving
Supreme Court judge of subverting an inquiry by lying and colluding with
the powers-that-be. The charge sounds all the more serious considering
that the inquiry was into a massacre of 4,000 citizens right in the Capital.

On
the eve of the massacre, P.V. Narasimha Rao, who as home minister was
responsible for what was then the Union territory of Delhi, assured the
press that everything would be under control within a couple of hours.
Misra absolved him of any responsibility for the administrative collapse
during the three-day massacre. Years later, after Rao became Prime
Minister and Misra retired as chief justice of India, Rao made Misra the
first chairman of, of all the things, the National Human Rights
Commission. Misra has since joined Congress and become its member in the
Rajya Sabha.

In
April 1989, emboldened by Misras clean chit to him, Prime Minister
Rajiv Gandhi declared in Parliament: The terrible bloodbath of November
1984 was a carnage which will rest for ever on the conscience of all
decent Indians. The material put together in this CD shows that the
Misra inquiry and the subsequent motions of follow up action were no less
a matter that should rest for ever on the conscience of all decent
Indians.

For
the record, the Misra Commission recommended a committee to look into
allegations that many cases were either not registered or not properly
investigated. The first proposal the committee made in 1987 was for
registration of a murder case against former Congress MP Sajjan Kumar. The
police did not act on the committees instruction. Instead, an associate
of Sajjan Kumar obtained a stay from the Delhi high court on the very
functioning of the committee. In October 1989, the high court quashed the
very appointment of the committee. About five months later, the V.P. Singh
Government appointed a fresh committee minus the defect pointed out by the
high court. Subsequently, many cases came to be taken up by the police but
because of the delay and cursory investigation less than five per cent of
those have resulted in convictions. Most of the convictions were for minor
offences like rioting and violation of curfew orders. Needless to add, no
political leader has so far been convicted for his complicity in the 1984
massacre.

Meanwhile,
there was another committee, again recommended by the Misra Commission, to
identify delinquent police officials. A report submitted by one of the two
committee members recommended various degrees of punishment to 72 police
officials, including six IPS officers. But due to some reason or the
other, the Government has so far not taken action against any of the
officials.

It
was against this dismal background of legal deception and unfulfilled
expectations that the Vajpayee Government took the momentous decision in
December 1999 to accept the demand for a fresh judicial inquiry into the
whole issue of the 1984 carnage. In Parliament, members of all the
parties, including the Congress party, passed a resolution supporting the
Governments decision in this regard. The subsequent appointment of the
Justice G.T. Nanavati Commission is nevertheless an unprecedented
development. The Misra Commission earned the dubious distinction of giving
such a report that the Government was prompted to order an inquiry into
the matter all over again.

Fortunately,
despite a lapse of more than 16 years since the carnage, the decision to
hold a fresh judicial inquiry has paid off. Hundreds of victims and
witnesses responded enthusiastically by filing affidavits and adducing
evidence in public hearings before the Nanavati Commission. Though it
apparently took a while to locate the old records, the Vajpayee Government
has been more forthcoming in disclosing documents related to the decisions
taken by authorities during and after the carnage. In the process, a whole
lot of new evidence has come to light thanks to the ongoing proceedings of
the Nanavati Commission.

For
instance, many eminent persons have for the first time been able to put on
record how home minister P.V. Narasimha Rao and lt governor of Delhi P.G.
Gavai dithered the carnage when asked to take prompt action and call in
the Army. Several depositions before the Nanavati Commission have also
come up with fresh evidence against Congress leaders H.K.L. Bhagat and
Sajjan Kumar for their role in the violence. As for the complicity of the
police, one very significant pattern of evidence that has now emerged is
that the first priority of top officers throughout Delhi, from the
commissioner downwards, seems to have been to disarm Sikhs and arrest
them. The Nanavati Commissions proceedings also yielded documentary
evidence (mainly in the form of Kusum Lata Mittals report) giving the
lie to the Misra Commissions finding that the violence escalated
because police stations had failed to keep their seniors informed about
the gravity of the situation.

A
lot of such tell-tale evidence that has come up before the Nanavati
Commission as well as official and non-official reports given over the
years in connection with the 1984 carnage have been painstakingly put
together in this CD. It is hoped that the CD will, at the very least,
serve as a record for the posterity and provide insights into how a state
that prides itself on being secular and democratic was complicit in a
massacre of members of a minority community. It is also hoped that the
Nanavati Commission, conscious of its position in history, will undo the
mischief of its predecessor and help the victims secure justice, howsoever
belatedly.

Every
citizen concerned about the health of our democracy has a vital stake in
helping establish the principle that no political party should be allowed
to use mass killings to reap a political harvest. The Congress party did
it in 1984 victimising Sikhs. The BJP tried to do it in 2002 victimising
Muslims. Since he has been appointed to head the inquiry into the Gujarat
riots as well, Justice Nanavati has been conferred, in the eyes of
history, a special responsibility to unravel this kind of cynical
exploitation of baser instincts. No matter what the outcome of Justice
Nanavatis exertions, this CD is offered as a humble and heart-felt
tribute to the thousands of unknown men, women and children who for no
fault of theirs were killed, raped, widowed, orphaned or rendered homeless
in Indias Capital in those fateful days of 1984.

COMPENSATION TO VICTIMS

While
the courts have by and large failed to secure justice to carnage victims,
they have been able to make headway on the issue of compensation. But for
judicial intervention, the Government would have got away with a meagre
compensation. Initially, it gave a compensation of only Rs 10,000 for each
death and up to Rs 1,000 to each injured person. As for damage to
property, the compensation ranged from Rs 1,000 to Rs 10,000.Not surprisingly, many victims saw these meagre amounts as a
further affront. Some victims even refused to accept the compensation.

In 1986, on the insistence of the Citizens Justice Committee,
the Misra Commission asked the Government to enhance the compensation
amounts. The Government gave another Rs 10,000 in death cases.

Subsequently, the courts made up to some extent for the
Governments apathy. In 1992, the Supreme Court directed that the
interest on the loans advanced to riot victims should be reduced to one
per cent between 1984 and 1992. And then in 1996, one compassionate judge
of the Delhi high court, Justice Anil Dev Singh, directed compensation of
Rs 3.50 lakh for each person killed in the 1984 carnage. The then BJP
Government in Delhi accepted this judgment and decided not to file an
appeal against it. The enhanced compensation of Rs 3.50 lakh was paid in
about 80 per cent of the cases in 1998-99. Some claims are still pending
for various reasons.